'On the Same Page' - Debating same-sex marriage

Apr. 8, 2013

The Press-Citizen asked the following academics, activists, policy makers, students and other local thinkers the following question:

As the U.S. Supreme Court considers the arguments over the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act, which previous court decision will cast the longer shadow over the proceedings? Is it Roe v. Wade (1973) — about which even Justice Ruth Bader Ginsburg has said the court, while correct in regards to Texas’ ban on abortion, ‘moved too far, too fast’ and triggered a backlash? Or is it Loving v. Virginia (1967), in which the court built on broader civil rights gains before overturning the remaining state bans on interracial marriage?

Case is more like Meyer v. Nebraska

Prior to researching this question, I, like most Americans, had little need or desire to passionately delve into the realm of case law of the U.S. Supreme Court. It’s daunting to say the least. While writing this piece though, I found that it was going to be even more daunting to attempt to summarize everything into about 300 words.

Both Roe v. Wade (1973) and Loving v. Virginia (1967) lay important precedent for the arguments heard this week. Both cases involve due process and equal rights clauses within the Fourteenth Amendment. While I do believe that Loving v. Virginia will cast a larger shadow over these proceedings, because it deals specifically with marriage, I wanted to actually look at how this case’s ruling was determined, which brought me to a previous case, Meyer v. Nebraska (1923).

Never heard of it? I didn’t think so.

This is where the U.S. Supreme Court struck down a state ban against teaching foreign language to children. The fact that it was illegal to teach foreign languages aside, I was compelled by the courts’ statement regarding this case: “Liberty, without doubt denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as common law essential to the orderly pursuit of happiness of free men.”

Because of Meyer v. Nebraska case, I believe that then Chief Justice Earl Warren, presiding over the Loving v. Virginia case, wrote pretty much that the state can not infringe upon the freedom or liberty of individuals to marry one another based upon race.

Given these decisions, why then should states be able to deny the liberty of individuals to marry whom they choose, even if those intended spouses are of the same gender?

Anthony Brown is manager of community engagement and development for Diversity Focus.

Equal protection is the cornerstone of our existence

The U.S. Supreme Court, our nation’s court of last resort, exists as an insulated institution for a reason. That reason is to ensure that the rights of every man and woman in this great country do not disappear or never become fully realized due to majority demands.

The drafters of the U.S. Constitution specifically worked to ensure that the majority could not simply dominate and oppress the minority. Thankfully, we live in a federal republic where every man and woman holds the same inalienable rights. This is a foundational tenet of our modern political regime — that we are all naturally equal.

Therefore, as the court determines the fate of California’s Proposition 8 and the federal Defense of Marriage Act in Hollingsworth v. Perry and United States v. Windsor, it should not concern itself with popular opinion — much like it did not concern itself with popular opinion when it held in its 1967 decision, Loving v. Virginia, that bans on interracial marriage violated both the equal protection and due process clauses of the Constitution.

The court’s role is not to validate public opinion, but rather to ensure the equality guaranteed by our Constitution. Conflicts over controversial issues will come and go, rise and fall, and change in many ways over the years, but the Constitution is forever.

When Perry and Windsor are handed down months from now, I sincerely hope that not just the court, but also the men and women who comprise this nation, remember that equal protection, and the equal application, of the laws remains a cornerstone of our existence.

Tyler Coe is a student in the University of Iowa College of Law.

Does the court really want to overturn a right reserved to the states?

In 1973 the U.S. Supreme Court decided in a 7-2 decision that a woman’s right to an abortion was protected as a right to privacy under the Fourteenth Amendment. With this decision moral, political, physiological and philosophical debate was set off that is still under way today.

When the states were allowed to decide how, when, where and why abortions could take place, it opened the possibility of a myriad of exceptions that continue to exist and are debated today.

The U.S. Supreme Court again is being asked to rule on an issue of the most personal nature: that which exists between two people in what has become to be known as “marriage equality.”

In considering the definition of marriage the Tenth Amendment argument definitely holds here: that powers not so designated to the federal government are those solely of the states.

However, here is also the First Amendment that states “”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Marriage is by tradition a function of the religious sector. It was only when governments began to codify marriage, by defining who could or could not be married, that marriage became more secular in nature.

The Constitution gives no mention of marriage, but it does provide for equal protection under the law. Equal protection can be achieved through a social or legal contract between two individuals who choose to live their lives together, but not in that way that has been traditionally called a marriage; which is defined repeatedly in documents throughout the Judeo-Christian tradition as the of the joining of one man and one woman.

If this definition of marriage is overturned by the Supreme Court, just like abortion in 1973, how many “exceptions” and restructuring of the definition will there be by the individual states? How long will this debate be a part of our national lexicon?

Given that there have already been states that have passed so called “marriage amendments,” does the Supreme Court really want to begin to overturn what is definitely a right reserved to the states, but moreover the people?

Coralville resident Karen Fesler is an conservative political activist and campaign ground-game organizer.

Court can help propel LGBT Americans into first-class citizenship

There is no question that this country has shifted in its views about homosexuality and same-sex relationships within the last decade, generally becoming more accepting of and sympathetic towards LGBT Americans. The question remains whether this shift was a result of Supreme Court Decisions like Romer v. Evans and Lawrence v. Texas, or whether the gradual acceptance of LGBT individuals as people deserving equality under the law prompted the court to adopt a somewhat more inclusive view of Equal Protection and Substantive Due Process.

As our highest court now prepares its opinions in Hollingsworth v. Perry and United States v. Windsor, however, I have no reservations about denying that overturning Proposition 8 or DOMA would be “moving too fast.”

Gay couples exist in every state in the union, and will continue to exist regardless of whether their relationships receive formal, legal recognition, and most Americans have come to that realization and learned to live with it.

Despite whatever legal rationales the justices devise, they would be fooling themselves if they dodged deciding the cases on their merits because “the country is not ready.”

I’m ready.

All LGBT Americans are ready.

The majority of the country is ready.

Whereas Roe v. Wade was quite a drastic change in both the law and our understanding of individual freedom and substantive due process, extending formal recognition to already-existing relationships does no more than force our government to respect the private decisions and liberty of LGBT Americans.

There is surely no chance the court will strike marriage bans writ-large, but like Loving v. Virginia, I believe the court will render a much-needed decision at just the right time in the LGBT rights movement to give LGBT Americans the necessary tools to propel themselves into first-class citizenship somewhere in the (hopefully near) future.

Joseph Fraioli is a student in the University of Iowa College of Law.

Key will be what standard of review the court will use

Although the “Prop 8” and “DOMA” cases both deal with issues involving same sex marriage, there are important differences in their underlying issues. Because DOMA involves a federal statute there are federalism questions independent of the marriage issues. Thus, the constitutional issues of the Prop 8 case are more important to the question of same-sex marriage.

Between Roe and Loving, the latter seems more applicable to Hollingsworth v. Perry (the Prop 8 case). In Loving, the Supreme Court struck down a law in Virginia that forbade interracial marriage. Those opposing Prop 8 would certainly like the Supreme Court to look to Loving for guidance. Even to the extent that the definition of marriage may be deemed a state function, if a state law violates the equal protection clause of the U.S. Constitution the Supreme Court can strike it down.

On the other hand, although Loving was mentioned during oral arguments for Hollingsworth, there is a significant difference between the facts of the two cases. The attorney arguing for Prop 8 noted that one’s skin color was unrelated to any legitimate purpose of marriage, so it was appropriate for the Court to strike down the Virginia law.

In contrast, the attorney’s pro-Prop 8 argument was based on “the natural procreative capacity of opposite-sex couples” and how marriage is the institution society has always used to regulate the risks and benefits of procreative relationships.

Those opposing Prop 8 would dismiss this argument and note that not all opposite sex couples have children, same sex couples can adopt, etc. Those points weaken the pro-Prop 8 argument, but the key will be what standard of review the Supreme Court will use.

The pro-Prop 8 argument relies on the Court using the rational relation test, which they think Prop 8 will pass. The anti-Prop 8 litigants don’t think marriage is rationally limited to opposite sex couples, but they also believe that the court should use heightened scrutiny. A higher level of scrutiny would make it harder for Prop 8 to be held constitutional under the equal protection clause.

Aside from the level of scrutiny in terms of equal protection analysis, another difficulty for the pro-Prop 8 side is that the court has long held that marriage, family, and procreation are fundamental rights. Ironically, the court noted this when it upheld a Georgia anti-sodomy law challenged by a gay man. That decision was later overturned, but the notion of marriage as a fundamental right remains.

That means that even if a majority of justices are not willing to provide heightened scrutiny to laws differentiating on the basis of sexual orientation, the fact that marriage is involved may provide a way for a middle justice to strike down Prop 8 without broader implications.

Tim Hagle is a professor of political science at the University of Iowa.

Love is love

To make it perfectly clear, I am an advocate for gay marriage. I believe that two consenting adults should be able to get married regardless of whether they are of the same sex or not, and the fact that recognizing this right to marriage may be “too fast” for some people is of no real concern to me.

I firmly believe that a person cannot control whom she falls in love with, nor should she (so long as the object of her affection is another adult capable of consent).

While the U.S. Supreme Court may not have explicitly stated that a person cannot and should not have to control whom she is in love with in its 1967 decision, Loving v. Virginia (which held that bans on interracial marriage were unconstitutional), the court alluded to this principle throughout that opinion.

In Loving, the court included statements such as “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Nothing in this statement or in any other part of Loving indicates that confirming one’s love through marriage is a fundamental right for free, straight men and women only.

More so, nothing suggests that recognition of that right is contingent on public approval, particularly when public opinion appears to be misguided. Much like opponents of interracial marriage did before Loving (and do even now), opponents of gay marriage have warned that allowing homosexual couples to get married will somehow ruin the United States.

Yet, considering that Loving has been the law since 1967 and the U.S. is still in tact, it seems to me that such predictions are plain wrong. After all, love is love, and a right to marriage is a right to marriage, even in the face of significant public opposition.

Jasmyn Harrington is a student in the University of Iowa College of Law.

Decision may leave us in no man's land

Time and again, the Roberts Court has shown its reticence to take one great step towards a more egalitarian society. For this reason, I believe Roe is likely to more strongly influence the U.S. Supreme Court’s decisions in Hollingsworth v. Perry and Windsor.

Unfortunately, Roe is famous, in part, for the court’s waffling posture. Unfortunately in trying to bridge a great divide in Roe, the court wandered into no man’s land, caught between two hardened, entrenched adversaries. The result was a messy, muddled opinion that makes the stuff of nightmares for Constitutional Law II students.

A high court with an ounce of courage would see that Loving v. Virginia ought to be its lodestar in Perry and Windsor. The substantial history of repression and demonization is not there to the same extent, but many of the concerns are similar.

Much like Loving, these two gay marriages cases are about the discriminatory intent of people who would persecute others simply because of whom they love. More important, like Loving, these cases are about the fundamental right of marriage, and they are about the immortal declaration codified within our Declaration of Independence that all people are created equal.

Sadly, much like with racial segregation in schools in a pre-Brown v. Board of Education era and anti-miscegenation statutes in a pre-Loving era, the states within this nation have proven time and again that, when left to their own devices on the issue of same-sex marriage, the majority will continue to tyrannize the minority.

With Perry and Windsor, this court has a real chance to push this great nation one step closer to equality; however, given its history, I worry that the court’s decisions will just leave us in no man’s land again.

Justin Hayes is a student in the University of Iowa’s College of Law.

Court has a duty to ensure equal protection

The assumption that the Supreme Court’s decision in Roe v. Wade triggered a “democracy-damaging backlash” is not historically sound.

Before Roe, Republicans in the Iowa legislature and elsewhere had been leaders in the effort to accomplish abortion reform. But that effort had already come to a virtual halt in the state legislatures (including Iowa), in the face of a well-funded opposition from a minority which had mobilized long before the Roe decision.

Nor is the assumption that marriage has not changed over time historically sound. When the Supreme Court decided that state bans on “miscegenation” were a denial of equal protection of the law in Loving v. Virginia they recognized that understandings of marriage had changed over time, and that denial of the right to choose whom to marry is a denial of equal protection of the laws.

Another change in our understanding of the meaning of marriage in the last 30 years is the gradual recognition, state after state, that sexual violence by a husband against a wife could be rape. Thousands of laws — both state and federal — still privilege those who are married.

The defense of DOMA invokes historical argument that is contrary to historical evidence. In the U.S., marriage has always been understood as a civil contract according to rules set by states, embodying a couple’s consent to join in long-lasting intimate and economic union. States have often differed significantly in setting marriage rules (such as minimum age at marriage, or grounds for divorce).

DOMA is an effort to exercise a power Congress had not been understood to have, and to single out particular state-licensed marriage for disfavored treatment.

In its eloquent decision in 2009, legalizing same-sex marriage in Iowa, the Iowa Supreme Court concluded that it has “a constitutional duty to ensure equal protection of the law.”

I can not say it better.

Linda K. Kerber is a professor emerita of history at the University of Iowa.

Movement has been growing for at leat six decades

It is impossible for me to speculate how the high court will approach both cases brought before them, let alone predict the outcomes.

I can say, however, that while public support for marriage equality has grown dramatically in a relatively short time, the seeds for this support were planted decades ago.

• The founding of the Mattachine Society in 1952.

• Pickets in front of the White House protesting State Department firings in 1965.

• The Stonewall riots of 1969.

• Advances, setbacks, and further advances both in the courts and by popular vote.

• And steadily-growing public acceptance of LGBT people since the 1970’s.

These are all signs of a movement that by any definition spans at least 60 years in the U.S.

This is hardly a sudden or impulsive act. The justices, if they wish to look to recent precedent, would do well to cite Romer v. Evans (1996), a case challenging the outcome of an anti-equality 1992 Colorado referendum.

Like Proposition 8 in California, Amendment 2 sought to block a class of people from receiving “special rights,” in the words of its proponents. The high court disagreed, writing that “the amendment imposes a special disability upon those persons alone.

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” This is the Supreme Court ruling that should cast a long shadow over current deliberations.

David McCartney is the University of Iowa archivist.

Some justices may want to remain on the sidelines a little while longer

Some may resist the premises of the question, but let’s assume that Roe v. Wade does illustrate the perils of the court intervening too quickly in a divisive area of social policy, while Loving v. Virginia illustrates the virtues of the court bringing a social-policy debate to an end.

On that view, Roe clearly cast the longer shadow over the court this week. (The DOMA case may be a different story; I’m focusing here on the case dealing with California’s Prop 8.)

The battle over same-sex marriage is being energetically waged in states across the country. Many states have recently banned it, while others (either legislatively or judicially) have embraced it. National polling shows increasing acceptance of same-sex marriage, but significant opposition remains even in reliably blue states like California.

So it came as no surprise when Justices Kennedy and Sotomayor wondered aloud about whether the court had moved too quickly to take up the question of whether the Constitution grants same-sex couples a right to marry.

If a justice believes a right to same-sex marriage can be found in the Constitution and that the American people are moving steadily toward the same conclusion, he or she may be loathe to intervene now and incur the wrath of a substantial portion of the American public.

If a justice does not believe same-sex couples have a constitutional right to marry, but believes opinion polls are likely to keep moving in the opposite direction, he or she may prefer to remain silent, lest history judge him or her harshly.

Given those and other possibilities, it seems likely that the effort to form a majority for any kind of grand pronouncement about a constitutional right to same-sex marriage (pro or con) will be thwarted this year by one or more justices who would prefer to find a different way to dispose of the California case, so that the court can remain on the sidelines for at least a little while longer.

Todd Pettys is a professor of law at the University of Iowa.

Marriage is about people, not politics

In 1967, another marriage was finally recognized by the United States of America. One hundred ninety-one years after the founding of this nation; 90 years after Reconstruction; and three years after the Civil Rights Act of 1964; the United States Supreme Court ruling, in Loving v. Virginia, invalidated laws prohibiting interracial marriage, including the Racial Integrity Act of 1924 which criminalized marriages between white persons and non-white persons. The Virginia miscegenation law had been on the books since 1662.

Richard and Mildred Loving were married in 1958 when 24 states barred interracial marriage. By the time the Supreme Court ruled on their case, that number had dropped to 16. Mildred Loving says that she was inspired by the growing civil rights movement and by the March on Washington. She lived through the civil rights gains of her time. In 1963, she contacted Attorney General Robert F. Kennedy, and he pointed her to the American Civil Liberties Union. They took the case.

It was Mildred Loving who later wrote in response to the struggle for marriage equality:

“I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

God bless Mrs. Loving. She understood that marriage is about people, not politics. She knew, from the time she and Richard Loving were sentenced to a year in prison “for the criminal charge of cohabiting as man and wife, against the peace and dignity of the Commonwealth of Virginia” until the landmark Supreme Court ruling that overturned state miscegenation laws. It must have been such a relief, such a joy, that committed and loving couples could now have the freedom to marry.

So, here we are today. The movement towards LGBT equality has reached a tipping point. We first began to organize almost 45 years ago. We moved from protest to protections with state housing, employment, hate crimes, relationship recognition and more.

Our civil rights movement worked on the local, state and national levels gaining momentum wherever we could. We faced extraordinary obstacles, prejudice and violence. Until recently our movement felt glacial, but we moved on. We demanded equality. We ran for office. We engaged in the democratic process and became politically astute. We faced the backlash of our opponents. We told our stories. We reached out to our adversaries. We humanized the “issues” with our faces, our voices and our lives. We changed hearts and minds. Polling has moved in our direction and today 60 percent of Americans say that the courts should rule with us on marriage.

At One Iowa and across the nation, the lesbian, gay, bisexual and transgender communities have done the hard decades-long work of building a foundation for equality.

We are ready; America is ready.

The Supreme Court of the United States of America should be ready, too.

Donna Red Wing is the executive director of One Iowa.

Court can't wait on public opinion

Justice Ginsburg’s comments on Roe v. Wade seem to illuminate Justice Kennedy’s approach to the Proposition 8 case, Hollingsworth v. Perry. During oral arguments, Justice Kennedy seemed incredibly wary about overturning Proposition 8 broadly (or maybe at all), in part because he believes that gay marriage is too “new” for such a decision.

Even when former U.S. Solicitor General Ted Olson, who argued for the rights of Californian gay couples, pointed out to Kennedy that the Supreme Court took a leap when it held that interracial marriage prohibitions are unconstitutional in Loving v. Virginia in 1967, Kennedy responded that interracial marriage prohibitions were hundreds of years old then and that bans on same-sex marriages do not have the same lengthy history in our country.

Kennedy may be fearful that a Loving-type decision on same-sex marriage will continually polarize the nation for years to come, much like the decision on abortion in Roe v. Wade has. But such thinking ignores important concerns such as the unjust loss of benefits and rights to children of same-sex couples.

More important, however wary the Court is a Roe v. Wade reaction, it should not allow public reaction to weigh so heavily on its decisions. If it is unconstitutional to deny individuals the right to marry a person of the same sex, it is unconstitutional right now even if popular opinion does not favor that decision (though, here, popular opinion — 49 percent to 46 percent — weights in favor of gay marriage).

In 1967, only 16 states banned interracial marriage, but the vast majority of Americans — 72 percent versus 20 percent —opposed interracial marriage between blacks and whites. Yet, the Court did not wait in Loving v. Virginia for public opinion to overwhelmingly favor interracial marriage before issuing that decision.

Gay marriage should be no different.

Courtney Thomas-Dusing is a student in the University of Iowa College of Law.